The Rehnquist Court (1994-2005). Seated, from left to right: Antonin Scalia and John Paul Stevens, Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Anthony M. Kennedy. Standing, from left to right: Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Stephen G. Breyer.
In 1993, Congress, which was then controlled by the Democrats, used its Section 5 powers to enact the Religious Freedom Restoration Act, or RFRA. The House passed RFRA unanimously! In the Senate, the vote was 97-3. President Clinton signed RFRA.
In Sherbert v. Verner (1963), the Supreme Court held that because of the First Amendment, a law cannot substantially burden the free exercise of religion without showing a compelling interest for doing so. Nearly three decades later in Employment Division v. Smith (1990), the Court changed course, and held that a state need not show a compelling interest for substantially burdening the free exercise of religion if the law is “neutral” towards religion. A law is “neutral” if it imposes the same burden on all religions. As its name suggests, RFRA sought to restore Sherbert’s more protective test. Like Sherbert, under RFRA, a states could not “substantially burden” the free exercise of religion, unless it can show a compelling interest for doing so.
Section 5 does not give Congress “the power to decree the substance of the Fourteenth Amendment’s restrictions on the States.”
“There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect.”
What is the injury Congress attempted to prevent? A state law that substantially burdens the free exercise of religion, which is protected by Section 1 of the 14th Amendment. What are the means Congress adopted to prevent such a violations of Section 1? When sued by a citizen, the state must show a compelling interest justifying the burden. Is the “fit” between the means and the ends “congruent and proportional”? The Court answers “No” Smith already held that the State need not show a compelling interest to justify a burden on free exercise, if that burden was imposed by a “neutral” law.
“When the court has interpreted the Constitution, it has acted within the province of the Judicial Branch which embraces the duty to say what the law is. . . . [A]s the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent and not RFRA which must control.”
RFRA sought to restore Sherbert’s more protective test. Specifically, under RFRA, once again, a law could not “substantially burden” the free exercise of religion unless the state can show it had a compelling interest for doing so. States that violated RFRA could be sued in federal court. Congress used its Section 5 powers to abrogate state sovereign immunity.
After RFRA was enacted, the city of Boerne, Texas denied a building permit to St. Peter’s Catholic Church. Generally, the city — a subdivision of the state — could not be sued in federal court. However, Archbishop Flores was able to sue the city because of RFRA. He claimed that the denial of the building permit substantially burdened his free exercise of religion and that the city failed to show that it had a compelling interest to deny the permit.
The Supreme Court held that Congress lacked this power. Justice Kennedy wrote the majority opinion.